Digital Commons Network^™

Keeping Track Of Conservation, Jessica Owley

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Throughout the world, governments require land protection in exchange for development permits. Unfortunately, oftentimes scant attention has been paid to these land protection programs after development. Agencies and permit applicants agree on mitigation rules, but there appears to be little follow-up. When we do not know where conservation is occurring and cannot determine the rules of mitigation projects, the likelihood that they will be successful or enforced diminishes. I journeyed to California in search of answers by tracing four mitigation plans associated with the Federal Endangered Species Act. While I anticipated some difficulties, the tale is more alarming than expected. …

Entick V. Carrington And Boyd V. United States: Keeping The Fourth And Fifth Amendments On Track, Richard A. Epstein

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No abstract provided.

The Political Economy Of Crowdsourcing: Markets For Labor, Rewards, And Securities, Richard A. Epstein

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Food Trucks, Incremental Innovation, And Regulatory Ruts, Elizabeth Kregor

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No abstract provided.

Aligning Campaign Finance Law, Nicholas Stephanopoulos

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Agglomerama, Lee Anne Fennell

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Challenging The Randomness Of Panel Assignments In The Federal Courts Of Appeals, Adam S. Chilton, Marin Levy

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Slicing Spontaneity, Lee Anne Fennell

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In this symposium essay, I consider the role of resource segmentation — the natural or artificial division of resources into appropriable or contributable units — in eliciting and maintaining coordination in the absence of formal private property rights o

Private Orderings, Lisa Bernstein, Alan B. Morrison, J. Mark Ramseyer

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No abstract provided.

Cost-Benefit Analysis Of Financial Regulations: A Response To Criticisms, Eric A. Posner, E. Glen Weyl

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Transforming Trepidation Into Transactional Lawyering, John H. Matheson

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Those of us teaching the Business Associations course in law schools are almost universally presented with a combination of circumstances that provides a unique opportunity for transformative teaching. These circumstances start with the outstanding quality of our students but also include their limited educational exposure and experience in business matters, their indoctrination into the “lawyer as litigator” model of the first-year curriculum, their lack of contact with transactional and collective decision making, and their unfamiliarity with the concept of lawyer as value creator.

A Response To The Ipcc Fifth Assessment, Sarah J. Adams-Schoen, Deepa Badrinarayana, Cinnamon Carlarne, Robin Kundis Craig, John C. Dernbach, Keith H. Hirokawa, Alexandra B. Klass, Katrina Fischer Kuh, Stephen R. Miller, Jessica Owley, Shannon Roesler, Jonathan Rosenbloom, Inara Scott, David Takacs

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The Intergovernmental Panel on Climate Change's (IPCC) Fifth Assessment Report presented significant data and findings about climate change. But the IPCC's working groups' summaries for policymakers avoid making normative statements about the IPCC's findings. The authors, members of the Environmental Law Collaborative, bridge this gap by identifying the normative claims that stem from the working groups' summaries to spark deeper discussion and help shape the IPCC's sixth assessment.

The New Way Of War: Is There A Duty To Use Drones?, Oren Gross

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Drones have become the poster child for America’s continuing fight against terrorism under President Obama, playing the role that torture had occupied during the Bush administration: a morally, legally, and politically controversial issue that drives a wedge between the United States and much of the rest of the world. Covert drone attacks orchestrated by the CIA around the world, including in areas that lie outside recognized war zones, raise a range of difficult questions that have been heavily debated by scholars, policy-makers and in the general media. However, that discussion has focused on whether states have the legal right to …

Intelligence Legalism And The National Security Agency’S Civil Liberties Gap, Margo Schlanger

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Since June 2013, we have seen unprecedented security breaches and disclosures relating to American electronic surveillance. The nearly daily drip, and occasional gush, of once-secret policy and operational information makes it possible to analyze and understand National Security Agency activities, including the organizations and processes inside and outside the NSA that are supposed to safeguard American’s civil liberties as the agency goes about its intelligence gathering business. Some have suggested that what we have learned is that the NSA is running wild, lawlessly flouting legal constraints on its behavior. This assessment is unfair. In fact, the picture that emerges from …

Book Review, Mario L. Barnes

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Reviewing Pulled Over: How Police Stops Define Race and Citizenship by Charles Epp, Steven Maynard-Moody, and Donald Haider (2014).

Institutionalizing The Uspto Law School Clinic Certification Program For Transactional Law Clinics, Jennifer S. Fan

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With 188 transactional law clinics nationwide and the United States Patent and Trademark Office (“USPTO”) Law School Clinic Certification Program (“Program”) recently established as a statutory program of the USPTO, this Article argues that every transactional clinic that works on trademark and patent applications should apply to become part of the Program. In satisfying the participation requirements of the Program, transactional law clinics will usher in a new, uniform way to educate aspiring intellectual property attorneys. As a result, the law students will not only be “practice ready,” but also more effective attorneys once they are in practice. Participating in …

Coming Of Age: Innovation Districts And The Role Of Law Schools, Jennifer S. Fan

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New urban models, dubbed “innovation districts” are gaining traction in entrepreneurial-focused areas across the United States. This article begins by defining what innovation districts are. It then examines the potential role that law schools, together with technology transfer offices, can play as innovation cultivators within such districts. Specifically, it looks at three potential models that law schools can consider when contemplating a relationship with the technology transfer office within a university. Integrating a clinic and technology transfer office within an innovation district does not come without its challenges, however. Accordingly, this article will suggest ways for transactional law clinics to …

Corporate Social Responsibility Versus Business And Human Rights: Bridging The Gap Between Responsibility And Accountability, Anita Ramasastry

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This article explores the evolution of business and human rights (BHR) from a lawyer’s perspective and examines how it is contextually and conceptually different from corporate social responsibility (CSR) in its aims and ambitions. While CSR emphasizes responsible behavior, BHR focuses on a more delineated commitment in the area of human rights. BHR is, in part, a response to CSR and its perceived failure. This has led to a gap with two disciplines or strands of discourse that are diverging rather than converging. This article explores how the quest for accountability shapes a very different narrative for BHR, which takes …

White Paper: Options For A Treaty On Business And Human Rights, Anita Ramasastry, Douglass Cassell

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The United Nations Human Rights Council decided in June 2014 to establish an Intergovernmental Working Group to “elaborate an international legally binding instrument to regulate, in international human rights law, the activities of transnational corporations and other business enterprises.” The first meeting of the Working Group took take place in Geneva in July 2015. The Council did not further specify what sort of instrument should be drafted. The Center for Human Rights of the American Bar Association and the Law Society of England and Wales asked the present authors to prepare a “White Paper” on possible options for a treaty …

Revisiting The Client Conundrum: Whom Does Lawyer For A Government Represent, And Who Gives Direction To That Governmental Lawyer?, Hugh D. Spitzer

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The issue of identifying a government attorney’s client is age-old, and Washington’s Rules of Professional Conduct provide somewhat different answers for lawyers who are government employees and for those who are with private firms. The matter becomes even more interesting when a government entity’s attorney is a publicly-elected legal official: an attorney general, prosecuting attorney, or city attorney in the case of Seattle and a number of other cities around the country. Others have written thoughtful pieces on the topic from a national perspective, and there is at least one excellent but slightly outdated piece by District of Columbia municipal …

The Struggle To Bury Pre-Existing Condition Consideration, Sallie Thieme Sanford [email protected]

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As of January 1, 2014, applicants for comprehensive health insurance do not face questions about their health history. The ACA prohibits health insurers from considering an individual’s health history in determining whether to sell that person a comprehensive health insurance policy, the policy’s price, or its coverage terms. Pre-existing condition (PEC) consideration is, in this crucial context, dead. Few will mourn its passing. This legislative milestone marks a significant step towards the goal of a healthier population. While celebrating this achievement, however, in this article I argue that we ought to recall the context of PEC consideration, its practical application, …

Saving An Old Friend From Extinction: A Proposal To Amend Rather Than To Abrogate The Ancient Documents Hearsay Exception, Peter Nicolas

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This Essay critically assesses a pending, proposed amendment to the Federal Rules of Evidence—slated to take effect in December 2017—that would abrogate Federal Rule of Evidence 803(16), the hearsay exception for ancient documents. The proposed amendment was motivated largely by a fear that large quantities of potentially unreliable, stockpiled, electronically stored information (ESI) are approaching the threshold age for being deemed "ancient" and could thus be swept into evidence via the exception.

In Part I of this Essay, I provide an overview of the proposed amendment. In Part II, I contend that although the proposal is a well-intentioned effort to …

Taxation And Surveillance: An Agenda, Michael Hatfield

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Among government agencies, the IRS likely has the surest legal claim to the most information about the most Americans: their hobbies, religious affiliations, reading activities, travel, and medical information are all potentially tax relevant. Privacy scholars have studied the arrival of Big Data, the internet-of-things, and the cooperation of private companies with the government in surveillance, but neither privacy nor tax scholars have considered how these technological advances should impact the U.S. tax system. As government agencies and private companies increasingly pursue what has been described as the “growing gush of data,” the use of these technologies in tax administration …

Economic Migration Gone Wrong: Trafficking In Persons Through The Lens Of Gender, Labor, And Globalization, Dana Raigrodski

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This Article argues for an economic analysis of human trafficking which primarily looks at globalization, trade liberalization, and labor migration as the core areas that need to be explored to advance the prevention of human trafficking.

Part I briefly examines the prevailing criminal law enforcement framework regarding human trafficking—both at the international level and in the United States—which stems out of viewing human trafficking as primarily a threat to global security and an underground industry of transnational criminal enterprises. It argues that while criminalization no doubt helped bring much needed attention (and resources) to human trafficking, the narrow criminal law …

"Nowhere To Run; Nowhere To Hide": The Reality Of Being A Law Library Director In Times Of Great Opportunity And Significant Challenges, Penny A. Hazelton

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Edited remarks presented at a program on January 5, 2015 at the Association of American Law Schools Annual Meeting in Washington, DC.

Push, Pull, And Spill: A Transdisciplinary Case Study In Municipal Open Government, Jan Whittington, Ryan Calo, Mike Simon, Jesse Woo, Meg Young, Perter Schmiedeskamp

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Municipal open data raises hopes and concerns. The activities of cities produce a wide array of data, data that is vastly enriched by ubiquitous computing. Municipal data is opened as it is pushed to, pulled by, and spilled to the public through online portals, requests for public records, and releases by cities and their vendors, contractors, and partners. By opening data, cities hope to raise public trust and prompt innovation. Municipal data, however, is often about the people who live, work, and travel in the city. By opening data, cities raise concern for privacy and social justice.

This article presents …

Robotics And The Lessons Of Cyberlaw, Ryan Calo

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Two decades of analysis have produced a rich set of insights as to how the law should apply to the Internet’s peculiar characteristics. But, in the meantime, technology has not stood still. The same public and private institutions that developed the Internet, from the armed forces to search engines, have initiated a significant shift toward developing robotics and artificial intelligence.

This Article is the first to examine what the introduction of a new, equally transformative technology means for cyberlaw and policy. Robotics has a different set of essential qualities than the Internet and accordingly will raise distinct legal issues. Robotics …

Can Americans Resist Surveillance?, Ryan Calo

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This Essay analyzes the ability of everyday Americans to resist and alter the conditions of government surveillance. Americans appear to have several avenues of resistance or reform. We can vote for privacy-friendly politicians, challenge surveillance in court, adopt encryption or other technologies, and put market pressure on companies not to cooperate with law enforcement.

In practice, however, many of these avenues are limited. Reform-minded officials lack the capacity for real oversight. Litigants lack standing to invoke the Constitution in court. Encryption is not usable and can turn citizens into targets. Citizens can extract promises from companies to push back against …

Rulemaking As Legislating, Kathryn A. Watts

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The central premise of the nondelegation doctrine prohibits Congress from delegating its Article I legislative powers. Yet Congress routinely delegates to agencies the power to promulgate legislative rules—rules that carry the force and effect of law just as statutes do. Given this tension between the nondelegation doctrine and the modern regulatory state, some scholars have attacked the nondelegation doctrine as fictional.

Little scholarly attention, however, has been given to considering how the central premise of the nondelegation doctrine coheres with—or fails to cohere with—administrative law as a whole. This Article takes up that task, exploring what might happen to administrative …

Private Data, Public Safety: A Bounded Access Model Of Disclosure, Mary D. Fan

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A growing volume of crucial information for protecting public health and safety is controlled by private-sector entities. The data are private in two senses—both proprietary and secluded from scrutiny. Controversies over corporate secrecy, such as sealed settlements that hide deaths due to product defects or nondisclosure of potentially hazardous substances, illustrate how corporate privacy and public safety can conflict.

Courts are conflicted about when to defer to companies’ claims of the right to keep information private when important public interests are implicated by the data that companies refuse to disclose.

This Article proposes allowing what it terms “bounded access” to …